Gibbs v. Pierce County Law Enforcement Support Agency, City of Tacoma

• Decision Date: 27 March 1986
• Docket Number: No. 85-3754,85-3754
• Citation: 785 F.2d 1396
• Parties: 40 Fair Empl.Prac.Cas. 673, 40 Empl. Prac. Dec. P 36,097 Lynda D. GIBBS, Nancy R. Meyer, Kay A. Simmons, Rosemarie Sowell, and Judith A. Thompson, Plaintiffs-Appellees, v. PIERCE COUNTY LAW ENFORCEMENT SUPPORT AGENCY, CITY OF TACOMA and its Police Department, and Pierce County and its Sheriff's Office, Defendants-Appellants. CA
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1396

785 F.2d 1396

40 Fair Empl.Prac.Cas. 673,

40 Empl. Prac. Dec. P 36,097

Lynda D. GIBBS, Nancy R. Meyer, Kay A. Simmons, Rosemarie Sowell, and Judith A. Thompson, Plaintiffs-Appellees, v. PIERCE COUNTY LAW ENFORCEMENT SUPPORT AGENCY, CITY OF TACOMA and its Police Department, and Pierce County and its Sheriff's Office, Defendants-Appellants.

CA No. 85-3754.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 9, 1986.

Decided March 27, 1986.

Richard Milham, Tacoma, Wash., for plaintiffs-appellees.

Patricia Parfitt, Asst. City Atty., Joseph F. Quinn, Tacoma, Wash., for defendants-appellants.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, CANBY and WIGGINS, Circuit Judges.

CANBY, Circuit Judge:

The Pierce County Law Enforcement Support Agency, the City of Tacoma and its Police Department, and Pierce County and its Sheriff's Office (collectively "LESA") appeal the district court's judgment for Lynda D. Gibbs, Nancy R. Meyer, Kay A. Simmons, Rosemarie Sowell, and Judith A. Thompson (plaintiffs). The district court, after a bench trial, found that LESA violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Secs. 2000e et seq. by setting and maintaining the wages of "records supervisors"--the position held by plaintiffs--at an improperly low level based solely on the sex of plaintiffs.

On appeal, LESA challenges the district court's decision on procedural grounds and contests the district court's substantive finding of intentional discrimination. We

find LESA's arguments to be without merit. Accordingly, we affirm the district court's judgment.

FACTS

LESA, the Law Enforcement Support Agency of Pierce County, was originally formed in 1974 by the combination and consolidation of the communications and dispatch sections of the Tacoma Police Department and the Pierce County Sheriff's Office. Formerly, these law enforcement agencies had used commissioned officers ("communications sergeants") to supervise the communications and dispatch sections of their organizations. After the consolidation, LESA staffed the supervisory positions of its communications section with noncommissioned individuals ("communications supervisors") who had previously worked as dispatchers or communications officers for either organization. LESA's communications supervisors all were male and were paid at the same rate as the former communications sergeants.

In 1978, LESA expanded to replace the Tacoma Police Department and the Pierce County Sheriff's Office records sections with a single consolidated section. Formerly, each law enforcement agency had utilized a combination records-identification section which was comprised of records clerks, identification officers, and supervisory sergeants ("records sergeants"). Records sergeants and communications sergeants had earned the same salary.

Upon consolidation, the position of records sergeant was discontinued. LESA's new records section was comprised of records supervisors and records specialists. The salary of the records supervisors, all female, was set at 27% less than that of the former records sergeants and 15% more than that of the records specialists employed by LESA.

Plaintiffs Gibbs, Simmons and Sowell are former records clerks in the Pierce County Sheriff's Office records-identification section. Plaintiffs Thompson and Meyer are former records clerks of the Tacoma Police Department records-identification section. All plaintiffs except Sowell became records supervisors at the time of the establishment of LESA's records section.

On April 16, 1981, the Automotive and Special Services Union, Local No. 461 (Union) filed on behalf of "Aggrieved Female Members" a complaint with the Equal Employment Opportunity Commission (EEOC) charging LESA with discrimination based on sex.

On April 27, 1981, plaintiff Sowell became a records supervisor.

On September 30, 1982, the EEOC issued a determination dismissing the Union's complaint and notifying the Union of its right to sue. Shortly thereafter, the Union and plaintiffs brought suit against LESA in the United States District Court of the Western District of Washington. The district court found, inter alia, that the jobs of records supervisor and records sergeant were substantially equal and that LESA had engaged in intentional discrimination against plaintiffs from 1978 until the present. Damages were awarded based on the cumulative difference in pay between the records supervisors and the communications supervisors for the years 1979 through 1984. Attorneys' fees and costs were also awarded.

DISCUSSION

I. The District Court's Jurisdiction

LESA initially contends that the district court lacked subject matter jurisdiction over the present action on the ground that plaintiffs failed to file a timely charge with the EEOC. LESA argues that under 42 U.S.C. Sec. 2000e-5(f) satisfaction of section 2000e-5(e)'s 180-day filing requirement is a jurisdictional prerequisite. ¹

In Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234

                (1982), the Supreme Court held that the requirement of filing a timely charge with the EEOC was not jurisdictional in nature.    Id. at 393, 102 S.Ct. at 1132.  Rather, the 180-day filing requirement of section 2000e-5(e) was intended to act as a statute of limitations and was subject to the defenses of waiver, estoppel and equitable tolling.    Id. at 393, 394, 102 S.Ct. at 1132, 1133.  LESA's jurisdictional arguments based on sections 2000e-5(e) and 2000e-5(f) are therefore subsumed by its arguments, discussed infra, that plaintiffs' claims are time-barred.    See Boyd v. United States Postal Service, 752 F.2d 410, 414 (9th Cir.1985)
                

II. Statute of Limitations

LESA next contends that plaintiffs' claims are time-barred by 42 U.S.C. Sec. 2000e-5(e). LESA argues that Sowell failed to file any charge with the EEOC, as required by section 2000e-5(e), and that the charges filed by the Union on behalf of Gibbs, Thompson, Meyer, and Simmons were not filed within 180 days of any unlawful employment practice, also as required by section 2000e-5(e). We reject both arguments.

A. Sowell's failure to file

LESA's contention that Sowell failed to file a charge with the EEOC is being raised for the first time on appeal. ² Because the issue of Sowell's failure to file does not raise jurisdictional considerations, see Part I supra, the defense of estoppel is applicable to LESA's contention. Zipes, 455 U.S. at 393, 102 S.Ct. at 1132.

"As a general rule issues which have not been raised in the trial court will not be reviewed on appeal." Scott v. Pacific Maritime Association, 695 F.2d 1199, 1203 (9th Cir.1983) (citing authority). Variance from the general rule requires "exceptional circumstances" where "injustice might otherwise result." Frommhagen v. Klein, 456 F.2d 1391, 1395 (9th Cir.1972). Inasmuch as LESA offers no explanation of its failure to raise the issue in the district court, see United States v. Plechner, 577 F.2d 596, 598 (9th Cir.1978) (without explanation or exceptional circumstances courts will not deviate from general rule of declining issue) and no "exceptional circumstances" are present, we conclude that LESA is estopped from raising the "Sowell issue" here.

B. The 180-day limitations period

LESA contends that plaintiffs' claims of wage discrimination were not filed within 180 days of any unlawful employment practice. Plaintiffs' current salaries, LESA argues, are merely the present effect of an act--the decision to hire plaintiffs at a given salary--that took place more than 180 days prior to the filing of plaintiffs' charge with the EEOC. Under United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), claims based on the "present effect [of] a past act of discrimination," are time-barred. Id. at 558, 97 S.Ct. at 1889. Thus, LESA argues, the district court erred by holding that LESA's biweekly wage payments to plaintiffs constituted a practice currently actionable under Title VII.

This court has squarely rejected LESA's theory of discriminatory wage payments. In Bartelt v. Berlitz School of Languages of America, Inc., 698 F.2d 1003 (9th Cir.), cert. denied, 464 U.S. 915, 104 S.Ct. 277, 78 L.Ed.2d 257 (1983), we considered the identical argument and wrote:

We disagree. The policy of paying lower wages to female employees on each payday constitutes a "continuing violation." We conclude that the claims are timely because each plaintiff filed charges with the EEOC within three hundred days of Id. at 1004-05 (citations and footnote omitted). By finding that each payment of discriminatory wages constituted a "continuing violation," we implicitly rejected the LESA's characterization of wage payments as merely the present effect of a past act. As each plaintiff in the instant action filed charges with the EEOC within 180 days of a payment, we conclude that plaintiffs' action is not time-barred.

a payment of allegedly discriminatory wages.

III. Exhaustion of Administrative Remedies

LESA contends that plaintiffs are barred from raising their employment discrimination claims because they failed to exhaust Title VII's administrative remedies. Although plaintiffs filed a charge with the EEOC, it was explicitly based on LESA's failure to pay plaintiffs and communications supervisors equally for substantially equal work. ³ LESA argues that plaintiffs' failure to present to the EEOC their principal litigation theory--that LESA discriminated by failing to pay plaintiffs and records sergeants equally--should bar plaintiffs from relying on that theory at trial. We find this argument meritless.

Plaintiffs and LESA agree that the standard for deciding whether plaintiffs exhausted their administrative remedies is whether the theory actually relied on at trial was "like or reasonably related to the allegations of the EEOC charge." Brown v. Puget Sound Electrical...